Sunday, December 14, 2008

In Reckless Hands: Skinner v. Oklahoma and the Near Triumph of American Eugenics. By Victoria F. Nourse. New York: W. W. Norton & Company, July 2008. Cloth: ISBN 978-0-393-06529-9, $24.95. 240 pages.

Review by Cari Keller, Northeastern State University, Oklahoma

Victoria F. Nourse provides a fascinating historical account of the U.S. Supreme Court’s decision regarding Skinner v. Oklahoma, 316 U.S. 535 (1942). Skinner v. Oklahoma signified the end of Oklahoma’s eugenics program targeting certain convicted felons for involuntary sterilization. The author vividly recounts the state and national acceptance of scientific theories suggesting that criminal behavior was genetically inherited.
She begins with a discussion of the social climate of the 1920’s and 1930’s. In 1931, flamboyant Oklahoma Governor Alfalfa Bill Murray executed a law authorizing the involuntary sterilization of citizens suffering from mental illness, mental retardation, or epilepsy who were housed in asylums or publicly funded institutions. The prevailing scientific wisdom of the time advocated eugenics: the segregation and sterilization of those who had serious hereditary defects in order to prevent the continuation of these defects in future generations. By this time, more than half of the states had eugenics statutes targeting imbeciles, idiots, and the feebleminded. During the 1930’s, these states practiced compulsory sterilization at an average rate of 2,000 citizens per year.
This practice was, as Nourse discusses, not without its critics. The Catholic Church became a vocal opponent of eugenics laws. Several court cases were filed on behalf of those subject to immediate sterilization. While these cases were frequently unsuccessful, courts were consistently suggesting that eugenics laws were degrading and humiliating. A New Jersey court implied that eugenics laws could be abused by tyrannical majorities to subjugate perceived weak or inferior classes. Discussions at this time posed a fear that eugenics laws could be used to control racial or class populations. One case made its way to the United States Supreme Court. In 1927, Buck v. Bell, 274 U.S. 200 (1927), silenced the judicial critics of the time and upheld a state’s power to protect the welfare of its citizens from those considered less desirable. In framing his opinion, Justice Holmes stated, “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes” (274 U.S. at 207). Carrie Buck’s sterilization heralded several new compulsory sterilization laws and influenced its use against a different population, the “habitual offender.”
It is ironic, as Nourse describes well, that the United States was keeping a watchful eye on Nazi Germany’s controversial involuntary sterilization program as they sought to achieve the “pure” race. Newspapers across the country editorialized about the dangers inherent in the Nazi theory of eugenic purity and their fixation on Jews, Catholics, Gypsies, and Protestants. At the same time, the Oklahoma legislature passed the Oklahoma Habitual Criminal Sterilization Act of 1935. The act authorized the sterilization of inmates with three or more felony convictions involving moral turpitude. However, it specifically exempted white collar crimes such as embezzlement, crimes against prohibitory laws, or political crimes. The law’s psychological impact on Oklahoma prisoners held significant consequences for the Department of Corrections.
Nourse details more than one prison break or riot resulting from the enforcement of the new sterilization law. In chapter 6, Nourse describes the tension and pressure felt by the prisoners and guards alike at McAlester State Penitentiary. The day after the state initiated the first sterilization proceeding against an inmate, a riot erupted in the brickyard. Several inmates took a civilian hostage, along with two guards, and attempted to escape using a guard’s vehicle. When all was said and done, the foreman was found dead and the prisoners were recaptured. The riot’s instigator, Claud Beavers, was a three-time convicted felon, eligible for sterilization under the new law. The first prisoner chosen for sterilization, Hubert Moore, also escaped from McAlester approximately one month after the state proceeded with its case. Enter Jack Skinner. The state of Oklahoma wasted no time; they filed a Petition for Sterilization against Jack Skinner the day following Moore’s escape.
Jack Skinner, a three-time felon, pleaded guilty to chicken stealing and two armed robberies as his predicate offenses. As a young man of only twenty-seven, sterilization appeared to be his certain fate. However, the atmosphere inside the prison proved tumultuous for then-Warden Wash Kenny. While denying that the recent prison break and ensuing riots were related to compulsory sterilization, Kenny released $1,000 from prison canteen funds to attorney Claud Briggs. Thus, Briggs and his team embarked on an uphill journey to challenge the constitutionality of compulsory sterilization.
Nourse carefully develops the historical context of the U.S. Supreme Court’s decision in Skinner v. Oklahoma. She devotes several chapters to Skinner’s trial, the composition of the Supreme Court during that period, and the political climate of the nation between 1936 and1942. The factual background is complex, and many relevant events preceding this decision occur simultaneously. The author presents the material clearly and concisely.
The chapter revealing the Skinner decision intertwines the challenging constitutional jurisprudence with the social philosophy of the time. The Skinner decision is infrequently cited in modern jurisprudence, usually recalled for what it failed to do. A unanimous court held that Oklahoma’s compulsory sterilization law as applied violated the fourteenth amendment’s equal protection clause insofar as it created two classes of habitual offenders. The Court opined that the exemptions for embezzlement or political crimes could not sustain rational-basis review. The court explained that stealing twenty dollars from a stranger and stealing twenty dollars from an employer were known by different terms, larceny and embezzlement, respectively. However, each were punished the same under the Oklahoma code. Yet, an inmate thrice convicted of larceny was subject to compulsory sterilization, whereas the inmate thrice convicted of embezzlement was not (Skinner, 316 U.S. at 539). While the Court stated that “[m]arriage and procreation are fundamental to the very existence and survival of the race,” the Court stopped short of declaring the same fundamental rights under the Constitution (Skinner, at 541). The Court did not declare compulsory sterilization unconstitutional in and of itself, nor did the Court overturn Buck v. Bell. However, as Nourse points out, legislative attempts to redraft or expand compulsory sterilization were regarded with stricter scrutiny.
Overall, In Reckless Hands is an engaging account of America’s—and Oklahoma’s—constitutional and social history.

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